Arizona court won't require info on execution drug

The Arizona Supreme Court on Wednesday refused to force the Arizona Department of Corrections to disclose where it obtained the drugs needed to carry out a scheduled execution next week.

But the high court left a possible out for Jeffery Landrigan, who is scheduled to be executed Tuesday in Florence for killing a man in Phoenix in 1989.

Defense attorneys for Landrigan recently convinced a lower court judge to order DNA testing on bloodstains on the victim's blue jeans, despite Landrigan's pending execution. Supreme Court Chief Justice Rebecca White Berch asked that judge to explain her reasoning before ruling on whether to stay the execution and allow the testing to be done.

Landrigan's case also will be heard by a state clemency board Friday.

Most of a Wednesday morning hearing focused on where the state had acquired its sodium thiopental, a barbiturate designed as an anesthetic but also used nationwide to carry out executions by lethal injection. The drug is part of a combination that would be used to execute Landrigan.

The one pharmaceutical firm approved to manufacture the drug in the U.S. by the Food and Drug Administration has not produced thiopental since 2009. In wake of the shortage, executions in several states have been postponed.

Landrigan, 50, was sentenced to death for the 1989 murder of Chester Dean Dyer, 42. He was originally scheduled for execution in 2007, but was granted a stay as the U.S. Supreme Court pondered the constitutionality of lethal injection. After it ruled that the process could go forward, Arizona overhauled its own lethal injection protocol.

Landrigan's appeals ran out, and on Sept. 21 the Arizona Supreme Court issued a warrant for his execution.

That's when the issue arose of whether the state could obtain the necessary drugs.

Assistant Arizona Attorney General Kent Cattani admitted Wednesday that the state's newly-obtained supply was not made by the sole U.S. manufacturer. Defense attorney Dale Baich of the Federal Public Defender's Office concluded that it had to come from outside the country.

Cattani cited a state law guarding the identities of executioners and all persons involved in the execution process as reason for not divulging the source of its drugs. But Baich's colleague, Karen Wilkinson, argued to the court that bringing the drug from overseas might violate FDA regulations, as thiopental is a controlled substance.

Justice Andrew Hurwitz pointedly asked her, "Is there federal law that forbids the use of non-FDA approved drugs in executions?"

Wilkinson countered that if the drug was substandard, it could amount to cruel and unusual punishment under the Constitution if it does not adequately sedate the condemned person so that he or she does not suffer pain from the following two drugs used in executions.

Hurwitz commented on the irony of calling attention to FDA regulations, which are intended to safeguard lives.

"These are drugs that are going to kill someone," Hurwitz said.

Cattani argued that the origin of the drug was irrelevant.

"The purpose of the drug is to cause unconsciousness," he said. He referred to the state's execution protocol requiring that medical personnel verify the level of unconsciousness before the execution goes forward.

Hours after Wednesday's hearing, Berch issued an order denying the defense motion. Baich said his office intended to pursue the drug matter further in federal court.

Berch, meanwhile, delayed ruling on the second motion related to the DNA testing.

Superior Court Judge Susan Brnovich explained late Wednesday that she allowed the DNA test to complete a court order from 2007 that had never been fully carried out.

Even if the DNA in question is not linked to Landrigan, Cattani argued, it will not exonerate him and will only provide evidence that others were present when Dyer was murdered.